made his said large payments, may be pushed over off of the one-fourth of said mill property upon the other real estate of Douglas, and paid out of the proceeds thereof, and that said one-fourth may be subjected to the payment of his lien for $1,800. H. F. Brohard and S. C. Douglas also answered the bill, and T. B. Douglas filed what is termed an "answer and petition," not having been made a party defendant. The cause was twice referred to a commissioner, and reports filed, both of which were excepted to, and depositions taken, and filed. Columbus Kelley also filed a petition in the cause with reference to the $1,400 debt. On the 16th of November, 1897, a final decree was entered, in which, after providing for the payment of certain costs and taxes therein mentioned, and applying the money in the hands of the special commissioner accruing from the rental of the property, the court overruled the exceptions to the commissioner's report filed by Crim, Brohard, Edgar Douglas, William Douglas, and T. B. Douglas, and confirmed the same as modified by the decree, holding that the lien reported by said commissioner in favor of said Crim on account of the judgments of said special commissioner discharged by him, amounting to $2,823.06, should be second in order of priority, and that the third purchase-money note reported by the said special commissioner in favor of the said Crim as a lien second in order of priority upon the said property, amounting to $3,623.13, should be made third in order of priority, and said report was reformed accordingly; ascertained the real estate belonging to said Douglas, and the first lien upon all said real estate in Philippi sold to S. C. Douglas by said special commissioner is the sum of $234.22, with interest thereon from October 30, 1897, in favor of T, B. Douglas; proceeded to fix the amount and priority of the lien of said special commissioner, J. N. B. Crim, and T. B. Douglas upon the property in Philippi, and, in case of its insufficiency to satisfy the same, fixing the manner it shall be paid out of the proceeds in the Belington mill property, after the payment therefrom of the trust debt in favor of Edgar and William Douglas for $1,631.70, which was fixed as a first lien on said Belington mill property; the next in order of priority to be paid out of the proceeds of the mill property being a debt of $1,631.70, with interest, in favor of E. and W. Douglas, assignees of George M. Seprell, who was assignee of the Case Manufacturing Company,-the same being a first lien thereon; the debt next in priority to be charged upon the proceeds of said Elk farm of 241 acres being a trust debt in favor of H. F. Brohard for $3,854.50; the next in order of priority, and next entitled to be paid out of the proceeds of said property in Philippi after the payment of the specific liens thereon therebefore fixed, and after the payment of the $2,538 to said Crim out of the proceeds of one-fourth thereof, if any there

be, after the aggregate of the liens on said Philippi property as therein fixed has been fully paid; next fixing the amount and priority of certain judgments which are to be paid from the proceeds of all of said real estate after the payments of the above-mentioned liens in the order therein fixed; and, it appearing that the debt of $481.98 in favor of the Tygart Valley Bank has been paid, the same was not decreed for, and no action was taken upon the petition of C. Kelley; and it was decreed that, unless S. C. Douglas should pay, within 30 days from the adjournment of the court, to said several creditors, the debts decreed to them, respectively, a special commissioner, therein named, be directed to sell said several parcels of land upon the terms therein specified. From this decree J. N. B. Crim appealed.

Melville Peck, for appellant. S. V. Woods, W. T. Ice, and Fred O. Blue, for appellees.

ENGLISH, J. (after stating the facts). The first error claimed is that the court allowed several small claims for costs to B. B. Stout, the Novelty Mill Company, the Cleveland Dryer Company, T. Ault & Son, and Nardyke, Norman & Co., no claim whatever having been made to such debts till the final decree was entered; the court reciting that the costs accrued by reason of the cases against the Philippi Manufacturing & Mercantile Company and others being kept on the docket for the benefit of the fund, and the claims thereto coming from S. C. Douglas through the hands of Special Commissioner Woods. The rule as to awarding costs in courts of equity is found in 5 Enc. Pl. & Prac. 184, where it is said: "The awarding of costs in cases in equity is said to rest in the sound discretion of the court, but this does not mean that such discretion may be exercised arbitrarily or capriciously." I can see no good reason why these costs should take precedence over the claims of appellant, especially as they are not mentioned in the pleadings, and it in no way appears what disposition was made of the cases in which they accrued, which, if made to appear, would indicate their proper place in point of priority.

As to the second point relied on as error by the appellant, the court clearly erred in decreeing that T. B. Douglas should have, as the first lien on the real estate of S. C. Douglas in Philippi, the sum of $234.22, for the following reasons: He was not made a party defendant to plaintiff's bill, but on November 5, 1897, he filed what he designates as an "answer and petition," and prayed for affirm. ative relief against S. C. Douglas, assignor, and J. N. B. Crim, assignee, of the $1,200, to which the plaintiff replied generally, and no process was awarded or executed on said answer. See Goff v. Price, 42 W. Va. 385, 26 S. E. 287, where this court held that an answer under section 35, c. 125, of the Code, containing new matter constituting a claim

for affirmative relief, may be taken for confessed as against the plaintiff, but not against another defendant without service of process to reply to it. It is claimed by appellant-I think correctly-that it was error to apply the portion of the debt due him by assignment from S. C. Douglas (that is, said Douglas' portion of the $1,404, with its interest) to the payment of the debt of Woods, special commissioner, whose judgments were liens on other real estate of S. C. Douglas, while appellant still held the third purchase-money note on the Philippi property, which had not been reduced to judgment. It is also assigned as error to decree the judgments of Woods, special commissioner, and appellant against the undivided fourth of the mill property which said Crim had sold to Douglas, and upon which he held a vendor's lien prior to the debt of Brohard, simply to save the Elk farm for Brohard's debt. This claim I regard as correct, for the reason that S. V. Woods, as special commissioner, had taken judgments upon the purchase-money notes, and had the same docketed long before the deed of trust to secure Brohard was executed and recorded; and Woods, as special commissioner, having, by docketing said judgments, created a lien upon all the real estate of said Douglas in Barbour county, and having a right to resort thereto for the payment of his judgments, while the appellant could look only to the Philippi property for payment of his lien, equity would compel said Woods to so enforce his judgment liens as not to deprive appellant of the benefit of his lien.

It is also pointed out by the assignment of errors that said decree is inconsistent, in this: that while, in one clause, it provides, if the property in Philippi should not sell for enough to pay the debts of T. B. Douglas, S. V. Woods, special commissioner, J. N. B. Crim, and the costs of suit, the residue should be a first lien on the Belington mill property, and first paid out of the proceeds of the sale thereof; and in the next clause it fixes the trust debt in favor of Edgar and William Douglas for $1,631.70 as the first lien on the said mill property. This portion of the decree must be regarded as erroneous, not only on the ground of its inconsistency, but because the judgments mentioned were liens upon said Belington mill property long anterior to the execution and recordation of the trust deed in favor of Edgar and William Douglas. There can be no question that Crim, being surety for S. C. Douglas for the purchase money of the Philippi property to said special commissioner, had the right to pay said purchase money, and was forced to pay the same, and was entitled to be subrogated to the rights of S. V. Woods, special commissioner. It must be borne in mind that this is a proceeding in equity on the part of S. V. Woods, special commissioner, against S. C. Douglas and his sureties, to collect the purchase money remaining unpaid to him as special commissioner by reason of the sale

of the Philippi property; and, such being the case, said S. V. Woods, special commissioner, was aware that Crim was the surety of S. C. Douglas on the note so executed for the purchase money of said Philippi mill property, and he also knew that Crim, as such surety, paid the third purchase-money note. Said special commissioner had taken judgments on the first two notes, and docketed them, thereby constituting liens on all the real estate of S. C. Douglas in Barbour county. Crim, having paid said third purchase-money note as the surety of Douglas, was entitled to step into the shoes of S. V. Woods, special commissioner, as to his rights against the Philippi property; but, no judgment having been taken on said third note, he could not resort to the other real estate of Douglas in the county for the payment of that note. Now, can it be possible that Douglas, being aware of these facts, could, by conveying his other real estate in Barbour county to a trustee, or any other person, give such grantee precedence over the docketed judgments of S. V. Woods, special commissioner, and compel him to satisfy his judgments out of the Philippi property, and thus consume the only means to which Crim (who had befriended him by becoming his surety and paying his debts) could resort for payment? When Brohard and the Case Manufacturing Company took their trusts upon the other real estate of Douglas, they had notice of the docketed judgments against him, and that they constituted liens upon the property they were taking their trusts upon, and this was sufficient to put them upon inquiry, and upon proper investigation they would have ascertained that the notes upon which said judgments were ob tained were for part of the purchase money of the Philippi property; that there was a third note upon which judgment had not been taken, but which had been paid by Crim, as surety for Douglas; that Crim, having paid it, was entitled to substitution as against the Philippi property alone, while Woods had a right to resort to the other real estate of Douglas for the satisfaction of his judgments, and equity would compel him to do so if the Philippi property was not sufficient to pay both Woods, as special commissioner, and Crim. Having notice of said docketed judgments, could Brohard and the Case Manufacturing Company compel Woods, special commissioner, to resort thereto for the satisfac tion of said judgments? In the circumstances of this case, to do so would be to require Crim, who, as surety of Douglas, had paid for the property, to pay a considerable portion of the purchase money a second time, and this would not be equity. Crim, having paid the third purchase-money note as surety, is entitled to have the amount reimbursed to him out of the Philippi property, and said judgments must be made out of the residue of the Philippi property, and, if that is insufficient, after the payment to Crim of said third note they are entitled to satisfaction out

of the other real estate of said Douglas in Barbour county.

An effort was made to show that Crim was a partner in the purchase from S. V. Woods, special commissioner, of the Philippi property, but this contention was not sustained by the evidence, and the argument predicated thereon must fall.

For these reasons the decree complained of is reversed, and the cause remanded.

Note by BRANNON, J. I agree to a reversal, but not for all the reasons given by Judge ENGLISH. Has Crim preference for money paid as surety over the trust creditors? When a judgment is paid, it is ended at law, and equity will not keep it alive for subrogation to prejudice an innocent purchaser, but will let the rule at law prevail. McClas

key v. O'Brien, 16 W. Va. 791, point 7; 2 Bart. Ch. Prac. 1052, 1053; Sheld. Subr. § 34. If the man taking a deed of trust knows that the surety, as such, paid the debt, the surety would get subrogation over him, but not otherwise. Brandt, Sur. § 316; Ahern v. Freeman (Minn.) 48 N. W. 677; Riefe v. Elting (Iowa) 56 N. W. 285. The judgments were docketed, and constructive notice is, for general purposes, equal to actual notice; and, if so in the present case, it would give Crim preference. Docketing gives notice of the judgment, but does it go further, and require a subsequent purchaser, who learns that the judgment has been paid, to know also that one of two debtors paid it, and that he was surety? Must he make further inquiry as to this? May he not rather presume that the principal debtor paid, as held in Ahern v. Freeman, supra? If this is not true, you make the docket import what it does not say, that is, that one of the debtors is principal, the other, surety; and also that the surety paid the judgment. It cannot go so far. Subrogation is the creature of equity to do justice, a latent equity; and equity will not affect an innocent purchaser for value with a latent equity. See Sherman's Adm'r v. Shaver, 75 Va. 8; 1 White & T. Lead. Cas. Eq. (4th Am. Ed.) pt. 1, p. 152. Though it is broadly stated that marshaling will not be enforced to the prejudice of third parties, yet that statement is too broad, for it seems that, when once the right of a creditor having a lien on one property to compel another creditor having a lien on two properties to subject, in the first instance, the property on which the junior creditor has no lien, exists, it is good against a third subsequent lienor, though not against one antedating the one who asks the marshaling, because he had this right when the third party's right began. 2 Beach, Mod. Eq. Jur. § 785, says this is the general rule, citing Ball v. Setzer, 33 W. Va. 444, 10 S. E. 798; Crawford v. Richeson, 101 Ill. 351, and other cases. Under this principle, as the trust debts are later in date than the Crim debt for the price of the fourth of the mill sold to Douglas, Crim has the right,

in the first instance, to put Woods to threefourths of that mill and the other realty, so as to let Crim's purchase money be paid out of that fourth. Under some authorities, even this is doubtful. Sheld. Subr. § 65.

(46 W. Va. 641)

WILSON et al. v. MADDOX et al. (Supreme Court of Appeals of West Virginia. June 17, 1899.)

RECEIVER-APPOINTMENT-PLEADING-DE

NIAL BY ANSWER-SUMMONS-
MOTION TO QUASH.

1. The bill must lay the foundation for the appointment of a receiver, by stating the facts which show the necessity and propriety of it.

2. When the application for a receiver is made before decree, it will not be granted, unless the bill contains a specific prayer that a receiver may be appointed; and the facts relied on for this character of relief should be distinctly and specifically set forth, and not merely alleged in general terms.

3. When the equities of the bill are fully and fairly denied by answer, unless the plaintiff overcomes such denial by other testimony, the question should no longer be regarded as one addressed to the discretion of the court, but it is error to appoint a receiver when the charges of the bill are so denied.

4. When a demurrer to a bill has been sustained, and leave granted plaintiff to file an amended bill at rules, it is error to quash a writ of summons issued in the cause to answer such amended bill "upon the ground that such process issued before the amended bill was filed at rules."

McWHORTER, J. James Maddox and Sarah Ann Maddox, his wife, by deed of January 31, 1893, conveyed to Irvin Stutler a certain tract of 125 acres of land on Buffalo creek, in Harrison county, for the consideration, as set out in the deed, "of their affection for the party of the second part, whom they raised from a child," and the further consideration of five dollars paid, and reserved in said deed, for the benefit of Sarah A. Maddox, the mansion house, and 40 acres of land adjoining thereto, whenever she should desire it, which house and 40 acres were to remain in the possession and under the control of said Sarah Ann Maddox during her lifetime, and at her death all right of possession and title should revert to said Irvin Stutler, his heirs and assigns. Soon after the execution of the deed, James Maddox died, having bequeathed all his personal estate to his said wife, Sarah. After his death, Mary A. Hoff, Charles S. Maddox, Lola Maddox Burt, Mary E. Culver, Mathew R. Maddox, L. R. Maddox, and F. Bird Young brought their suit in equity in the circuit court of Harrison county against Irvin Stutler, Sarah A. Mad

dox, J. I. Alexander, administrator of James Maddox, deceased, and Delia A. Smith, Adaine Swisher, A. A. Smith, and E. W. Smith, neirs at law of Mary Smith, to annul, vacate, and set aside said deed to Stutler. On the 22d day of May, 1896, said cause was heard, and the court decreed that said deed to Stutler "was and is wholly invalid, null, and void," and canceled, annulled, and set aside the same, and further decreed that the plaintiffs in said suit and the said Smiths, defendants, were the owners in fee of said tract of land, as the heirs at law of said James Maddox, subject, however, to the dower of said Sarah therein as the widow of James Maddox, and awarded said owners in fee a writ of possession for said land. At the August rules, 1897, Bettie Wilson, J. W. Maddox, Anna Angus, Sarah Lemley, Serena V. Dailey, Albert Maddox, J. A. Maddox, Annette Maddox, Frank Maddox, May F. Lemley, Maggie Sawyer, George Maddox, Sarah Ott, and Mary L. Curry filed their bill in said court against Sarah A. Maddox, Mary A. Hoff, Charles S. Maddox, Lola Maddox Burt, Mary E. Culver, Mathew R. Maddox, L. R. Maddox, F. Bird Young, Delia A. Smith, E. W. Smith, A. A. Smith, Adaline Swisher, Sarah Davis, or the unknown heirs at law of said Sarah Davis, and J. I. Alexander, administrator of James Maddox, deceased, alleging that James Maddox died on the day of February, 1893; that at the time of his death he owned and possessed a tract of 125 acres of land, on which he resided, and which was described by metes and bounds in a paper writing signed by said James Maddox, dated January 31, 1893, and recorded in the clerk's office of said county (and exhibiting with their bill the said deed from Maddox and wife to Stutler); that said James Maddox died intestate as to said real estate; that he left no child or children, nor the descendants of any child or children, to inherit his estate, and the same passed to his brothers and sisters and their descendants; "that at the time of his death James Maddox left, him surviving, said Mathew R. Maddox, his brother, said Mary A. Hoff, his half-sister, L. R. Maddox, the only heir at law of Alexander Maddox, a deceased half-brother, Charles S. Maddox, Lola Maddox Burt, and Mary E. Culver, the heirs at law of Samuel Maddox, another deceased brother, F. Bird Young, the only heir at law of a deceased sister, Delia A. Smith, E. W. Smith, A. A. Smith, and Adaline Swisher, the heirs at law of another deceased sister, Sarah Davis, another sister, or the unknown heirs at law of said Sarah Davis, and your complainants, Sarah Ott and Mary L. Curry, the children of William O. Maddox, another deceased brother, and your other complainants, Betty Wilson, J. W. Maddox, Anna Angus, Sarah Lemley, Serena V. Dailey, Albert Maddox, J. A. Maddox, Frank Maddox, May F. Lemley, Maggie Sawyer and George Maddox, who are the children and heirs at law of George Maddox, who was the

son of the said William O. Maddox, deceased"; that many years prior to the death of James his said sister Sarah Davis left the state of West Virginia, and plaintiffs did not know whether she was living or dead, and, if dead, they did not know whether she left any child or children, and did not know the names of her heirs at law; that while the said James Maddox made the paper writing for said lands to Irvin Stutler, which is in the form and nature of a deed for said lands, and the same was recorded in the clerk's office, the same was in fact never delivered by said Maddox to Stutler, and the legal title to said lands therefore never passed to said Stutler under said writing (and alleging the said former suit, and the decree setting aside the deed to Stutler); that plaintiffs' ancestor, William O. Maddox, was a full-brother of said James Maddox, and that said Sarah Davis was a full-sister of said James Maddox; that plaintiffs and Sarah Davis were not made parties to said former cause, nor were the heirs at law, if any, of said Sarah Davis made parties thereto, and were not legally bound by the decree in said cause; that plaintiffs were jointly entitled to one-seventh of said lands, one-third of which belonged to said Sarah Ott, one-third to Mary L. Curry, and the remaining third to the other plaintiffs jointly, one-seventh of said land to Mathew R. Maddox, one-seventh jointly to Mary A. Hoff and L. R. Maddox, one-seventh to F. Bird Young, one-seventh to Delia Smith, E. W. Smith, A. A. Smith, and Adaline Swisher, one-seventh to Charles S. Maddox, Mary E. Culver, and Lola Maddox Burt, and the remaining one-seventh to Sarah Davis or her heirs at law, and Sarah Ann Maddox to dower in the whole; that the real estate was susceptible of partition among the parties entitled thereto, but, if it could not be so divided, it should be sold, and the proceeds divided. And they pray that the parties named in the caption of the bill be made parties defendants, and required to answer the same; that process issue, and that said decree, a copy of which was exhibited with the bill, so far as it held and decreed the legal title to said lands to be in the plaintiffs in said suit and the defendants Smith, be modified, changed, and altered, and plaintiffs in suit at bar and Sarah Davis or her heirs at law be decreed to be joint heirs at law of said James Maddox, and as such entitled to participate in the division of said lands; that the same be divided between the parties entitled thereto, or sold and the proceeds divided; that the dower interest of Sarah A. Maddox be assigned to her in kind, etc.; and for general relief. The defendants Delia A. Smith, E. W. Smith, A. A. Smith, and Adaline Swisher filed their demurrer (and also Sarah A. Maddox filed her demurrer) to plaintiffs' bill, and say that plaintiffs have not by their bill made such a case as entitles them in a court of equity to the relief sought, and for grounds thereof say that by plaintiffs' bill they show

that one Irvin Stutler is a necessary and indispensable party to said suit; that by their bill plaintiffs show that the deed from Maddox to Stutler is good and valid as against plaintiffs; that the bill shows that plaintiffs and said Sarah Davis in the bill mentioned were not parties to the suit in the bill mentioned, to vacate and annul the said deed to Stutler, and that said decree vacating and annulling said deed is not binding upon them, and that said deed is valid and binding as against plaintiffs. And they further say that by reason of said deed, which is valid as against plaintiffs, and which is not assailed by them, they have no interest or estate whatever in the said tract of land. Mary A. Hoff, Charles S. Maddox, Lola Maddox Burt, Mathew R. Maddox, L. R. Maddox, and F. Bird Young filed their answer, admitting the allegations of the bill. And on the 5th day of October, 1897, the cause was heard on a motion of plaintiffs to have a receiver appointed to take possession of and rent the lands described in the bill until the same is disposed of by a final decree entered in the cause. The affidavit of Lewis C. Lawson was filed in support of said motion, and was argued, when the court appointed J. I. Alexander as receiver; and the court sustained the demurrer of the defendants, and granted leave to plaintiffs to file an amended bill at rules, and mature the same for hearing, making Irvin Stutler, E. G. Smith, and Lewis C. Lawson additional defendants thereto, and incorporating therein any additional matters which they might deem pertinent, or which were proper in the cause.

On the 11th day of October, 1897, the defendants Sarah A. Maddox, E. W. Smith, A. A. Smith, Adaline Swisher, and Delia Smith objected to the order theretofore appointing J. I. Alexander receiver of said land, because written notice of the motion was not served on the defendants, and asked a suspension of the order for 60 days, in order to permit a petition to the supreme court of appeals for an appeal, when the court set aside the order appointing the receiver so far only as the same related to the appointment and qualification of the receiver, and annulled and revoked his powers and authority. The following notice was given: "To E. W. Smith, A. A. Smith, Delia Smith, Sarah A. Maddox, and Adaline Swisher: Take notice that on the 20th day of January, 1898, the plaintiffs in the chancery cause of Betty Wilson and others, now pending in the circuit court of Harrison county, state of West Virginia, will make a motion in the circuit court of said county of Harrison, in said chancery cause, to have a special receiver appointed therein as provided in section 28 of chapter 133 of the Code, to take possession and control of the 125 acres of land mentioned and described in the bills of said chancery cause, wherein they are plaintiffs and you and others are defendants. This the 13th day of January, 1898. Betty Wilson and Others, by Counsel," which was served 33 S.E.-492

January 14, 1898. On the 20th day of January, 1898, defendants A. A. Smith, E. W. Smith, Delia A. Smith, Adaline Swisher, and Sarah A. Maddox moved the court to quash the writ of summons issued in the cause, to answer the amended bill of the plaintiffs, upon the ground that such process issued before the amended bill was filed at rules, which motion was sustained, and the process quashed, and leave given plaintiffs to sue out other process on the filing of such amended bill at rules. And leave was given to withdraw from the amended bill Exhibits A and B, and Lewis C. Lawson was given leave to withdraw from his answer thereto Exhibit X. And plaintiffs moved the court to appoint a special receiver to take possession of the lands mentioned in the bill and proceedings, and rent out the same until the further order of the court, and said notice was docketed. And on the 7th day of February, 1898, "the motion of plaintiffs for a receiver of the 125 acres of land came on to be further heard upon the original bill of plaintiffs now pending at rules; answer of the defendants Mary A. Hoff, Charles S. Maddox, Lola Maddox Burt, Mary E. Culver, Mathew R. Maddox, L. R. Maddox, and F. Bird Young; the affidavit of L. C. Lawson, filed by plaintiffs, and the affidavits of E. W. Smith, A. A. Smith, and F. W. Allman, filed by the defendant Sarah A. Maddox, and also by the defendants Delia A. Smith, E. W. Smith, A. A. Smith, and Adaline Swisher, in opposition to said motion; the objection of said defendants to the notice for such appointment; the answer of Sarah A. Maddox, and general replication thereto; the said answer of Delia A. Smith and others, and general replication thereto." The court certified that the case was argued and submitted on the 28th of January, 1898, upon all the papers aforesaid, except said answers; counsel for said defendants subsequently answering, stating at the same time that he relied upon his objection to the sufficiency of the notice, bill, and affidavit; saying that, if they should be deemed sufficient, he desired to file said answers. And on the 31st of January, after having partly considered the questions arising on said motion in open court, the court informed counsel for defendants that the court desired to have said answers in the cause, if there were an intention to file the same. The said answer of Sarah A. Maddox and the said answer of Delia A. Smith and others were then tendered by their counsel, who asked that, under the circumstances, he be allowed to file them, but counsel for plaintiffs objected. The objection was overruled, and the answers filed, and to which plaintiffs replied generally. The answers of defendant Sarah A. Maddox and of Delia A. Smith and others, while they deny all the material allegations of the bill, contain averments that defendant Sarah A. Maddox was in possession and enjoyment of the whole tract of 125 acres with the consent and agreement of the heirs at law of James Maddox,

.